The European Court of Justice (ECJ) in Schenker AG v Commission C-602/11 P confirmed on 20 June 2012 a judgment by the General Court rejecting an application by Schenker (a subsidiary of Deutsche Bahn) for intervention in the raft of appeals brought by airlines against cartel fines imposed on them by the EU Commission. If the intervention had been permitted, Schenker could have been in a position to gain access to crucial documentation in support of a damages claim against the airlines.

The Commission’s Fuel Surcharge Decision

On 9 November 2010, the EU Commission fined 11 air cargo carriers a total of € 800 million for operating a worldwide cartel affecting cargo services within the European Economic Area. The illegal contacts pertained to price discussions on fuel surcharges, the introduction of a security surcharge and the refusal to pay a commission on surcharges to the airlines’ clients (freight forwarders). It is assumed that Schenker seeks to gain access to documents for eventual damages claims, as well as to prevent the reoccurrence of the cartel by participating in the appeal.

The ECJ’s Ruling

In rejecting Schenker’s move to intervene in the appeals, the ECJ underlined that it is not the fundamental purpose of proceedings relating to an action for annulment of a Commission decision punishing anti-competitive behaviour to render possible, or facilitate, the pursuit of civil damages actions in national courts.

The ECJ ruled that the fact that a company is a customer of the airlines participating in the cartel is not sufficient, in itself, to establish a right to intervene. The mere fact that an undertaking might possibly be affected by higher prices caused by the alleged cartel (and may bring civil damages actions) does not distinguish it sufficiently from the other economic operators in the relevant sector that are also affected by the anti-competitive practices of the members of the cartel.

According to the Court, Schenker’s argument that it has an interest in obtaining the final termination of the cartel and the prevention of its reoccurrence cannot be considered to be a direct and existing interest in the result of the case. The Court held that the obligation on the participants of a cartel to bring to an end their anti-competitive practices is meaningful only if they have not already done so. The appeals in question are not related to the operative part of the contested decision ordering the termination of the cartel in question. Furthermore, the Commission itself states that there are no indications that an end has not been put to that cartel. For these reasons, therefore, Schenker has no right to intervene on the basis of ensuring the end of the cartel.

The ECJ clarified that companies will be given leave to intervene in EU competition cases if they are

Legal entities forming part of the same economic unit as that to which the applicant belongs and have themselves been held jointly and severally liable.

Competitors of an undertaking accused of abusing a dominant position within the meaning of Article 102 of the Treaty on the Functioning of the European Union.

Parties that actively participated in the administrative procedure before the Commission and/or filed the complaint that led to the Commission’s investigation and to the adoption of the contested decision.

Associations representing a large number of operators active in the sector concerned, whose object is to, inter alia, protect the interests of its members.

Significance

The case is of two-fold importance. First, the ruling offers clear guidance on the circumstances in which leave to appeal will be given to intervene in antitrust proceedings before the EU Courts. Second, it constitutes another piece in the puzzle that is the wider picture of the evolving field of private damages actions and the various attempts to gain access to sensitive cartel documents for the purposes of private damages actions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

"My best business intelligence, in one easy email…"

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Privacy Policy (Updated: October 8, 2015):

hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.